Reflection on the model and institutional reconstruction of the ownership of employee inventions
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D923.42

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    Abstract:

    China's employee inventions system was born in the era of planned economy, and the initial patent right was owned by the state and held by the unit with strong characteristics of the times.This provision was deleted when the Patent Law was amended in 2000, and an "employerism" model was established with the statutory ownership rules as the main basis, supplemented by the agreed ownership rules. Although this amendment is to a certain extent compatible with the needs of industrial change and technological innovation in China, there are still problems such as disorder of transformation structure, failure of incentive mechanism and imbalance of transaction efficiency. Through a horizontal examination of the system of ownership of employee inventions from the international perspective, the two main legislative examples of the existing employerism model and employeeism model are not perfect. Whether the patent right is fully attributed to the employer or to the employee inventor will inevitably give rise to the dispute of unfair distribution of the right of invention in office between the two, which will lead to a serious gap between the employer and the employee inventor and thus inhibit the innovation vigor of the employee inventor or the investment enthusiasm of the employer. The approach of most countries is to break away from the absolute "employerism" and "employeeism" legislative paths and follow the path of mixed doctrine.The adoption of "employerism" mode in China's employee inventions system is the fundamental way to realize the transformation and application of employee inventions,but there are still shortcomings in mobilizing human innovation to increase the total amount of property.The reform of China's system of ownership of employee inventions should focus on three aspects.Firstly, it adopts the standard of "performing tasks" and limits the scope of types of employee inventions. Firstly, based on the personal dependence of employee inventors in labor relations, the "material and technical conditions standard" is excluded from the scope of types of employee inventions, providing more autonomy for employee inventors. Secondly, the "task standard" as the core of the rules for determining employee inventions can exclude the judicial obstacles of the inconsistent standards for defining the "main use" in practice. Finally, the "task standard" as the core of the rules for determining job inventions is in line with the realistic demand of reducing system costs and improving efficiency. Secondly, it upholds the concept of "humanism" and expands the scope of agreed ownership regulation. The new job invention system incorporates the "task standard" into the scope of application of the agreement priority principle, which is in line with the legal concept of private law autonomy, and is also a full response to the state's dissolution of technological monopoly and expectation of social wealth growth. Thirdly, based on the principle of "balance of interests", the three-dimensional configuration structure model is constructed. The improvement of the ownership system of employee inventions applies different ownership modes to "task standards", "standards for material and technical conditions" and "non-employee invention" in the legal ownership rules. Thus, the three-dimensional configuration structure of the system of employee inventions is constructed.

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李雨峰,伯雨鸿.职务发明权属的模式反思与制度重构[J].重庆大学学报社会科学版,2023,(3):224~236

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  • Received:
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  • Online: July 13,2023
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